§ 29-2280 — Restitution; order; when

Nebraska § 29-2280

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted. With the consent of the parties, the court may order restitution for the actual physical injury or property damage or loss sustained by the victim of an uncharged offense or an offense dismissed pursuant to plea negotiations. Whenever the court believes that restitution may be a proper sentence or the victim of any offense or the prosecuting attorney requests, the court shall order that the presentence investigation report include documentation regarding the nature and amount of the actual damages sustained by the victim.

Legislative History

Source: Laws 1986, LB 956, § 1; Laws 1992, LB 111, § 4. Annotations: 1. Restrictions on restitution 2. Miscellaneous 1. Restrictions on restitution A sentencing court's factfinding in determining restitution does not expose the defendant to any greater punishment than this section authorizes, which is for the full amount of the victim's damages. State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007). Trial court erred in ordering defendant to pay restitution in the amount of total back child support owed rather than only the amount defendant was convicted of failing to pay. State v. Beck, 238 Neb. 449, 471 N.W.2d 128 (1991). Defendant cannot be made to pay restitution if the record does not reflect that actual physical injury or property damage or loss was sustained by the victim as a direct result of the offense for which defendant has been convicted. State v. Brohimer, 238 Neb. 45, 468 N.W.2d 623 (1991). An order to make restitution as a condition of probation is limited to the direct loss resulting from that offense of which a defendant has been convicted. State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991). Restitution is restricted to the loss sustained by the victim of the offense for which the defendant has been convicted. State v. Kelly, 235 Neb. 997, 458 N.W.2d 255 (1990). A sentence may only include restitution to the victims of the crime for which the defendant has been charged and convicted. State v. Arvizo, 233 Neb. 327, 444 N.W.2d 921 (1989). This section vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which a defendant is convicted. State v. Hosack, 12 Neb. App. 168, 668 N.W.2d 707 (2003). Nebraska law does not authorize restitution in the form of a defendant's in-kind labor. State v. McMann, 4 Neb. App. 243, 541 N.W.2d 418 (1995). 2. Miscellaneous It is plain error for a court to fail to specify in its written sentencing order whether the restitution is to be made immediately, in specified installments, or within a specified period of time. State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020). Before restitution can properly be ordered, the trial court must consider (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020). Restitution ordered by a court pursuant to this section is a criminal penalty imposed as a punishment for a crime and is part of the criminal sentence imposed by the sentencing court. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020) When a court orders restitution to a crime victim under this section, restitution is a criminal penalty imposed as punishment and is part of the criminal sentence imposed by the sentencing court. State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007). The requirements of this section are inapplicable in juvenile proceedings. In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007). Restitution, ordered in an amount not exceeding the actual damage sustained by the victim, is not a penalty within the meaning of Neb. Const. art. VII, sec. 5, and is constitutional. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006). The provision in section 54-611 that allows the court to order disposition of an offending dog is similar to this section, which allows a court to order restitution to the victim of a crime. State v. Dittoe, 269 Neb. 317, 693 N.W.2d 261 (2005). Restitution ordered by a court pursuant to this section is a criminal penalty imposed as punishment for a crime, not an administrative or civil penalty as is restitution under section 28-427. State v. Duran, 224 Neb. 774, 401 N.W.2d 482 (1987). This section sets forth a state policy regarding the rights afforded to persons ordered to make restitution, and a municipality or other governmental unit cannot permissibly enact laws inconsistent therewith. State v. Salisbury, 7 Neb. App. 86, 579 N.W.2d 570 (1998). The certainty and precision prescribed for the criminal sentencing process applies to criminal sentences containing restitution ordered pursuant to this section. State v. McGinnis, 2 Neb. App. 77, 507 N.W.2d 46 (1993).